International Baking Co.Download PDFNational Labor Relations Board - Board DecisionsJan 25, 1979240 N.L.R.B. 230 (N.L.R.B. 1979) Copy Citation 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Baking Company, Inc. and Isidro Palo- mares. Case 21 CA 16229 January 25, 1979 DECISION AND ORDER BY MEMBERS PENE.I.O. MURPItY. AND TRIt.SDALE On September 1, 1978, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, International Baking Company, Inc., Vernon, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Ad- ministrative Law Judge. The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr Wall Products, In.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d (ir. 1951). We hase carefull' examined the record and find no basis for reversing his findings 2 We agree with the Administrative Law Judge's conclusion that Respon- dent did not violate Sec. 8(a)(3) and I) by discharging employees J (arril- lo. . Carrillo, Pedraza, and Palomares. We, however, specifically disa.oI; his reliance, in support of this conclusion. upon the fact that the other 18 employees discharged by Respondent during the same period were n in- cluded within the complaint. Elm Hill Mearurs f Oenshoro, Inc. 205 NI.RB 285. 294 11973). Further, with respect to Palomares. we note that the record discloses the he was issued a document by the Immigration and Naturalization Service bearing the indication "Employment Authorized " Even assuming. arruen- do. that this document was presented by Palomares to Respondent's ice President Mani in November 1977, we find that a different result is not warranted here in iew of the Administrative aw Judge's finding. with which we agree, that there was no work available for Palomares at that time. 240 NLRB No. 43 APPENDIX No ICE To EPLOY ES POsTED) BY ORDER OF HE NATIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the Na- tional Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice. The Act give employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choosing To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any such ac- tivities. WE WILL NOT discourage membership in Bak- ers Union, Local 37, or any other labor organi- zation, by interrogating our employees concern- ing their union activities, offering our employees economic and other benefits in order to induce them to inform on their fellow workers concern- ing union activity, threatening our employees with discharge in order to discourage their union activity, and creating the impression that we are engaging in surveillance of their union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization. to form, join, or assist labor organizations, in- cluding the above-named organization, to bar- gain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. INrERNAIIONAI. BAKIN(; COMPANY. INC. DECISION STATEMENT OF THE CASE RUSSELL L STEVENS., Administrative Law Judge: This matter was heard in Los Angeles, California, on May 2, 3. and 4 and June 13, 1978.1 The complaint,2 issued on Janu- ary 27. 1978, is based upon a charge filed December 2 by 'All dates hereinafter are 1977, unless stated to be otherwise As .iended at trial. to make minor corrections. INTERNATIONAL BAKING COMPANY 231 Isidro Palomares., an individual. The complaint alleges that International Baking Company, Inc. (Respondent), violated Section 8(a)( I) and (3) of the National Labor Re- lations Act, as amended (Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel and Respondent. Upon the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following: FIN,)IN(iS of FA(I I Jt RISI)I( IIO()N At all times material herein. Respondent. a California corporation. has been engaged in the manufacture and sale, at wholesale, of bakery products and has operated a facility located in Vernon. California. In the normal course and conduct of its business operations. Respondent annu- ally sells and ships goods and products valued in excess of $50,000 directly to customers located outside the State of California. I find that Respondent is. and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce. within the meaning of Sec- tion 2(6) and (7) of the Act. 11 THE AB()R OR(iANIZ1AON INVOIVII) Bakers Union, I.ocal 37 (Union). is, and at all times ma- terial herein has been. a labor organization within the meaning of Section 2(5) of the Act. III tifI Al ii( (ill) I Ni IR IABOR P'RA(I I Background Respondent's bakery operation in Vernon. California is housed in a building of approximatel' 35.000 square feet in size, with three departments. i:. drivers, bakery., and of- fice. The bakery department produces several items of bread and pastry. but the principal product. and the one primarily involved herein, is pita bread. Pita bread is a Middle Eastern food product which requires several opera- tions. The dough first is mixed in large vats, and then di- vided and placed on a proofer. where it is allowed to rest for a period of time. The dough then is spread into a large wafer on a sheeter, and again allowed to set. The wafers then are baked in an oven and permitted to cool, after which they are packed for shipment. The entire operation, from mixing the dough to packaging. is done on a produc- lion line approximately 200 feet in length, using conveyor belts to move the product from one operation to the next. After the product is packaged, it is transferred to the ship- ping department truck for delivery to customers. At times All indiidual s are referred Iio hrein hb their ilst n;lnlc relevant herein, the pita bread line was operated on two shifts, from 8 p.m. to 4 a.m., and from 4 a.m. to noon. Each shift had 12 employees on the line, plus I employee who was a janitor. The line used one dough mixer, one divider. two sheeters. one on the oven, and six packagers. One per- son acted as relief for employees who temporarily left the line. In addition to the pita bread line. the bakery depart- ment had a bagel division. a baklava pastry division, and it muffin-Hawaiian bread division, all of which operated sep- aratelk from the pita bread line and which had different employees. In July 1977. Respondent had approximatel\ 32 emplo,- ees in the bakery department. approximatel i10 office em- ployees, 4 plus approximately 20 drivers. Respondent's chairman of the board is Jack Mani. The president is Mani's son Simon Mani. and the vice president is another son, Daniel Mani. The controller is Maurice Manl. who is Jack's brother. At times relevant herein. Daniel Mani su- pervised the production facility. including drivers, and he maintained an office within the plant.' He reported to Si- mon Mani. General manager at that time was Jack Khash- ou. Hattem Safar worked a split shift and supervised both shifts of the pita bread line. as well ais all other bakers operations. Safar usually worked from midnight until ap- proximately 8 or 10 a.m., and Mani usualll worked from approximately 9 a.m. to 9 p.m., with some time off during the day. Safar also maintained an office within the produc- tion area. next to that of Mani, which he shared ith Khashou.6 The production floor was visible through glass walls in the offices of Mani. Safar and Khashou. George Kurkjian formerly worked for Respondent and left in Sep- tember 1976. He returned at the beginning of September 1977 ias plant manager. Counsel stipulated that Kurkjian is a supervisor within the meaning of the Act. On May 2 or 3. Ruby Ocho;a business aent for the lUnion. talked with four of Respondent's employees about the possibility of organizing the emloees. The four with whom he talked were Jesus (arrillo. C(idriano Hernandez, Silbiano Carrillo., and Rueda. The employees expressed an interest in the Union. and a meeting later was held with employees in Hernandez' home, on May 28 or 29. .1. Carril- i.. S. Carrillo. and one other employee signed union au- thorization cards at the meeting. A second meeting was held on June 14 or 15. attended bh Hernandez. the two Carrillos. Jose ouis Tapia. and one or two other emplo- ees. A third meeting was held approximately JulN 15. at tIh union hall, attended by Hernandez. the two Carrillos. and Tapia. Approximately August 5. Palomares. lernrandez, S. Carrillo. and one or two other employees met with Ochoa in the latter's office, at which time three more authoriza- tion cards were signed. Ochoa received a total of 10 au- Repondeni hs . dichIcrer depolt in Sin I rnic, emplolng ,ni Irls cr, \11 lefcrcinc. hclcll lflcr i.alc I1t 1.1III rfer 1 to ).lnlci \an .Itk. Sillo.n ,rirl \tlildrie c Ln. crc itere insoilscd in Ihe c ontroser, t, I here is no dlptllc ,.iut thec ft Ihal Mani Kh.,hou. .and Siafar airc x1VF\cr ls.rl mmihi [ e ii c ilC TiimI "I the \ti J ( irrillo. sorkcd for R lponu dtl under in uistll Illic. (u.lmtn. im 5S ( .irrillM srked untder tile 1S1iIMlICe1 llIC il I .idwh Ra tu,. .1 ,i 1 d S (irrllh, ir h llihcrs 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thorization cards signed by employees. No petition for a representation election has been filed. Carlos Tellez, an investigator for the United States Im- migration Service, approached Mani sometime between August 20 and August 31 9 and asked for permission to come onto Respondent's premises to remove any illegal aliens who may be working there. Sometime after that visit Tellez talked on the telephone with Respondent's attorney. and was told that permission to come onto the premises would not be granted; that a search warrant would be re- quired. Because only a small number of employees was involved, Tellez did not return or pursue the matter. He did not advise Mani that he would not return. l0 After Tellez' visit, Mani talked with the employees about their immigration status and, commencing in August, be- gan discharging all employees who were illegal entrants. By September 30, all employees who were in the United States illegally had been terminated. The total was 22 employees from the plant complement of approximately 40 (plus ap- proximately 20 drivers). No drivers were discharged. Among those discharged, J. and S. Carrillo, Manuel Pedra- za, and Palomares contend they were fired because of their union activity. Issues The principal issue is whether the four employees named in the complaint were discharged because of their union activity, as they contend, or because they were illegal en- trants, and in the case of J. Carrillo, whether he was fired for cause, as Respondent contends. Other issues are wheth- er or not Jose Campos is a supervisor, and whether or not Campos violated Section 8(a)( 1) of the Act. A. Campos' Status as an Employee At times relevant herein, Campos worked at the head of the pita line on the second shift, mixing dough to be put into the mixer. Mixing a batch requires approximately 5 to 7 minutes, and Campos mixed two batches per hour. Dur- ing the time he was not mixing dough, Campos watched the pita line to see that it operated properly. Mani and Campos testified that Campos was a leadman, without su- pervisory authority to act independently. Campos was hired in 1975 at $5 per hour and learned how to mix dough after he was hired. In July 1977. he was earning $6 per hour. The next highest paid employee on the line earned $3.50 per hour. Campos punched a timeclock. J. Carrillo worked next to Campos and put the dough into the mixing machine. Others on the pita bread line were Pedraza, J. Carrillo, and Patricia Lara. Tapia worked in the packaging area, and trained new employees in packaging. He earned $2.75 per hour. Mani testified that Tapia was leadman of the packaging area on the second shift, and S. Carrillo tes- tified that Tapia was in charge of the packaging area. Campos' counterpart on the first shift was Toledo,'' who earned $4 per hour in August 19-7, and Tapia's counterpart Tellez could not recall the exact date of his visit, hut this lime frame found. based upon lellez' testimon. 'i This parabraph is based upon Telle credited testimonSn Also known as Rico. His full name s Rico oledo Ida. was Palomares, who earned $4 per hour. So far as their regular duties were concerned, setting aside any superviso- ry considerations, Toledo's work was the same as that of Campos, and Palomares' work was the same as that of Tapia. S. Carrillo testified that he was hired by Mani, and Mani told him what he was expected to do on the job. Campos "was looking after all the machines to see that they were working right, and he made the dough." Tapia was in charge of the employees in the packaging area, and Cam- pos was in charge of Tapia. Mani frequently told Campos "that the worker who would not obey him, that he was to fire him." On one occasion, Campos told an employee. Ra- phael Velasquez, that Velasquez was not doing his job properly and that he should go home. Velasquez went home and later returned to his job. Frequently during the day, Campos checked the work on the line and watched the employees, but S. Carrillo never heard Campos criticize any employee's work or correct any employee's work. However, Campos often changed employees' work stations on the line. Campos told S. Carrillo that Mani "...had told him that I was no longer to go to work," and when S. Carrillo later asked for his final check, he talked with Mani ab,ut being fired. . Carrillo testified that he was hired in August 1976 by Campos, who showed him what to do when he came to worK. Mani was the "boss" of the bakery, but Campos was the "leadman ... in charge of everything." Tapia also was a leadman but only over the "orders" for bread. J. Carrillo was fired, and when he asked for his final check, he talked with Mani about it. However, on many occasions Campos told him that Campos had authority to fire employees. J. Carrillo could recall no specific instance. In August 1977, he heard Campos fire an employee named Raphael be- cause Raphael did not want to work. Raphael returned to work approximately 8 days later. On one occasion. Cam- pos told J. Carrillo to go home but changed his mind and rescinded the order. Campos told J. Carrillo that he had instructions from Mani to fire any employee who did not work well. Pedraza testified that he started working for Respondent S ptember 1, 1974, after being interviewed and hired by Mani. He reported to Mani on his first day at work, and he was instructed in his job by his brother-in-law, who acted in that capacity under Mani's orders. When Kurkjian worked for Respondent, he gave work orders to Pedraza. and when Safar worked for Respondent he, too, gave work orders to Pedraza. When Pedraza worked on the pita bread line in 1977, Campos was his supervisor, or foreman, and Campos also was in charge of all employees who worked on the same shift. Tapia was in charge of the packaging employees on Pedraza's shift. If employees wanted to go home early, they obtained permission from Campos. When Campos started working for Respondent, he was a man- agement trainee, to learn how to be a baker. Campos was taught to be a baker by Kurkjian, who then was a part of management. On one occasion, Pedraza borrowed money from Respondent, after talking with Mani. Campos some- times changed Pedraza's work station, and Toledo did the same thing on the second shift, but Campos appeared to have more authority than Toledo. Campos exercised no INTERNATIONAL BAKING COMPANY 233 authority over anyone other than employees on the second- shift pita bread line, although if Toledo was late to work, Campos stayed at work long enough to assist the first shift. On one occasion Campos told Pedraza to go home, but Khashou rescinded the order. Both Campos and Mani scolded Pedraza if he did not work properly, and he had to follow Campos' orders. On one occasion Campos fired Pe- draza but rescinded his own order a moment later. When Pedraza was fired, Campos called his house on the tele- phone during Pedraza's absence and said Mani instructed Pedraza not to come to work. Pedraza went to the bakery the following day and asked Mani why he had been fired. Lara testified that Campos supervised her work and on on occasion suspended her for I week because she was late in arriving for work. No one other than Campos gave her directions at work. Tapir testified that Campos supervised all employees on the second shift of the pita bread line. Tapia did not have authority to hire or fire employees or to grant time off. If employees wanted to go home early, they asked Campos or Mani for permission. On one occasion when Tapia asked to go home early. Campos gave that permission after talk- ing with Mani. If both Campos and Mani were at work. employees asked Mani for time off, but if Mani was not there they asked Campos. Campos transferred employees among work stations. On one occasion Tapia heard Cam- pos order Pedraza to go home, but the order was rescinded. Campos visited the packaging area several times each day to check on the employees working there. Palomares testified that he received his instructions from Mani or one of the foremen. When he wanted time off, he got permission from Mani or Toledo. Toledo was in charge of the employees on the first shift, although Safar some- times gave instructions to employees. and Toledo transfer- red employees among work stations. Toledo or Mani cor- rected employees if they did not do their work properly. Mani laid Palomares off on September 13. and when he asked to return to work, he talked with Mani. Palomares was a leadman. with instructions to direct employees pack- aging bread. He did not have authority to transfer employ- ees on work stations. Mani testified that Campos was not a supervisor and Safar was the plant manager of both shifts in August 1977. Mani said he and Safar were the only supervisors and that Campos. Toledo. Palomares. and Tapia were leadmen without authority to hire, fire, adjust grievances, or disci- pline employees. Those four could make recommendations relating to employees and to the work of employees, but those recommendations would not be followed without in- dependent investigation by Mani. Mani's testimony was corroborated by Kurkjian. Campos corroborated Mani in relating the extent of his authority and testified that he never fired or suspended an) employee, except upon Mani's instructions. Discussion Some indicia of supervisory status are apparent, even in the testimony of Mani and Campos. (1) Campos frequently checked the work of employees during the day and made necessary corrections. (2) He transferred employees among work stations and assigned work to employees. (3) He ini- tialed employees' timecards. (4) He was given paid vaca- tion time, whereas most other employees on the line were not. 5) If employees became ill, he had authorit, to permit them to go home. (6) He was hired at $5 per hour. which was approximately double the pay of other employees on the line. and later was raised to $6 per hour. Mani and (ampos contend that Toledo held the same position as C(ampos. yet Toledo earned only $4 per hour in August 1977. Mani and Campos explained the foregoing b saying Campos' duties were those of a leadman: Toledo and Palo- mares received vacation and sick leave: and C(ampos was paid more than other employees because he was more ex- perienced and skilled. but those arguments are not persua- sive in view of other indicia of C(ampos' status. S. Carrillo testified that he was hired by Campos and that Velasquez was suspended by Campos. J. Carrillo testi- fied that Campos told him that he. Campos, had authority to fire employees, and on one occasion Campos suspended an employee. Respondent contends that Campos could not fire or suspend an employee unless it was upon the instruc- tions of Mani, and, other than the testimony of S. Carrillo. it s clear that no witness was hired or fired by Campos: all witnesses except S. Carrillo acknowledged that, in discuss- ing their employment or discharge, they talked only with Mani. Pedraza and the two Carrillos were not convincing witnesses. They are not credited unless credit is specifically given. Their testimony on this issue is considered biased, unreliable. and self-serving: it is given no weight. However. the testimony of Lara is considered reliable, and she testi- fied that Campos once suspended her because she arrived late for work. The pita bread line is the heart of Respondent's business. and it was manned in August 1977 entirely by Mexican nationals, none of whom spoke English, and most of whom were illegal entrants. Campos speaks both English and Spanish. and there is no doubt but that he ran the pita bread line in nearly every sense of the word. It may well be. as contended by Respondent. that Campos' authority on the pita bread line was limited and that he had no authori- v other than on that line. However, it is equally clear that all the employees on the pita bread line respected Campos' position and considered him as their link to management. Campos was relatively highly paid. had free access to Mani's office. frequently conversed with Mani, Safar. Kurkjian. and Khashou. frequently went up and down the line to inspect and make corrections transferred employees among work stations, and at least on one occasion. sus- pended employees by acting upon his own independent judgment. It also may be true that, in some respects. Tole- do was in much the same position as Campos, but it is apparent that Campos, the most highly paid production line employee, held and exercised more authority than To- ledo and was considered by management as its boss of the pita bread line. Finally, Respondent did not explain why Campos was hired in 1975, at a wage approximately double that of line employees, when Campos knew nothing about the business. Mani taught him to mix the dough. et Re- spondent contends that Campos was paid more than other employees because of his experience and skills. It is appar- 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent that Campos, who is of Latin nationality, was hired by Respondent, at least partially, to supervise the pita bread line. It is found that Campos was a supervisor within the meaning of the Act, at all times relevant herein. B. Discharge of Employees The complaint alleges that Respondent discharged J. Carrillo, S. Carrillo, Pedraza, and Palomares, because of their protected activity and in violation of Section 8(a)(3) and (I) of the Act. Respondent contends that it discharged J. Carrillo be- cause of his absenteeism, and that the other three employ- ees were discharged solely because they were illegal en- trants into the United States. C. Respondent's Knowledge of Union Activit ') Respondent contends that it was not aware of any union activity at the plant when the four employees were dis- charged. Mani testified that he became aware of the Union's or- ganizational efforts "sometime toward the end of Septem- ber" 1977, when Campos told him that he had heard a rumor about the Union calling the Immigration Service. Mani said Campos told him 3 or 4 weeks later that S. Car- rillo had been seeing some of the union people. Mani said he had no other knowledge of union activities within the plant. Campos testified that he first became aware of union activity "about the middle of September," when he heard a rumor about it or overheard employees talking. Campos said he talked with S. Carrillo, whom he considered his "right hand," and asked him "what is this they are saying, that the Union is sending the Immigration?" Campos said he understood that the Union had reported Respondent to the Immigration Service because some of the employees refused to sign union authorization cards. S. Carrillo then told Campos about the first contact with the Union. when Ochoa stopped S. Carrillo and other employees on the free- way and talked about the Union and about the later union meetings. Campos testified: "And so then I ask him, you know, who sign the papers, you know. I was just curious, you know." ' S. Carrillo replied that he did not sign a card, because he did not care for the Union. Campos testi- fied that he told Mani about his conversation with S. Car- rillo, and thereafter the Union was a common topic of con- versation at the plant. S. Carrillo testified that Campos talked with him, alone, about the Union "Like, towards the beginning of Au- gust," 13 and that Campos said "Daniel Mani was going to fire us because of the Union," and "if I were to tell him the truth about who were involved with the Union, I would be able to stay on working." S. Carrillo said Campos had the same sort of conversation with him alone, 2 days later, and again at approximately the end of that week. He said J. Carrillo and Pedraza were present during the third conver- 'This 8aHl I violation is acknowledged by (Campos. S. Carrillo later testified that the date was August 10. sation, and that Campos said Mani was going to fire the employees because of the Union, and that they should tell the full truth. S. Carrillo said he never told Campos any- thing about the union activity, but he later changed that testimony and said he told Campos in August about Ochoa and other union representatives stopping the car that S. Carrillo, Raul Carrillo,'4 J. Carrillo, Pedraza, Clavio Rueda and Jose Luis Reuda were riding in to talk about the Union. J. Carrillo's testimony on this subject was quite different from that of S. Carrillo. J. Carrillo testified that in August, Campos talked with four employees about the Union; Pe- draza, S. Carrillo, J. Carrillo, and one other employee whose name he forgot. Campos said Mani was going to fire the employees "because we were going around with the Union." "That he was very sorry that they were going to fire us, but that he knew that that is why it was; because of the Union." Two or three days later, Campos talked with Pedraza, S. Carrillo, and J. Carrillo, and Campos stated "he knew that we were going to be fired, because Daniel had the cards that we had signed." The employees denied that they had signed cards, but Campos insisted that Mani had the cards. Pedraza gave a third version of the alleged incident. He testified that he and the two Carrillos talked with Campos approximately July 19, and Campos stated that Mani "knew that there was a group wanting to make a union in the factory," and "that he wanted us to tell him who the persons were that were interested." Later, approximately the beginning of August, Campos talked with him, S. Car- rillo, and another employee whose name Pedraza did not know, and Campos "wanted to know who the persons in- terested in this were. If we were to say who they were, then, perhaps we would not be fired." Ochoa testified that, at no time, did he talk with any representative of Respondent concerning the Union, and that he has no reason to believe that any official of Re- spondent knew, from May through September, that a union organizing campaign was being conducted. Ochoa said he told employees that they did not have to tell their supervisors about the union activity, and he stated that , mployees told him they were trying to keep the activity secret from Respondent. Pedraza testified that, at the union meeting with employees in June, the employees dis- cussed the fact "That we should be careful that the owners or the supervisors wouldn't find out." Pedraza said he told no management representative, including Campos, about the union activity. J. and S. Carnllo testified that Ochoa told them to keep the organizing effort secret from Respon- dent. Discussion The versions given by witnesses relating to conversations among Campos and employees concerning union activity vary considerably, but one fact is not in dispute, i.e., that Campos talked with S. Carrillo about union activity prior to the time S. Carrillo was discharged. S. Carrillo's services were terminated approximately September 17.'5 '1 Also known as (idriano Hernandez, who s S. (arrillo's brother. I0 Resp. Exh 6 INTERNATIONAL BAKING COMPANY 235 S. Carrillo testified that he and Campos first talked about union activities on August 10 and on two other occa- sions the week of August 10. J. Carrillo testified that he and others, including S. Carrillo, talked with Campos about union activities sometime in August. Pedraza placed the talks between employees and Campos in July and the first of August. Campos did not den) talking with employ- ees other than S. Carrillo concerning the Union in July or August. Versions of the conversations among Campos and employees vary considerably so far as their content is con- cerned,'6 but it is clear that Campos learned sometime in August or September about union activity, that he talked about that activity with S. and J. Carrillo and Pedraza and possibly one or two other employees. and that he informed Mani about that activity. A question is presented as to whether Respondent learned about the union activity prior to or after Tellez' visit to the bakery. It is found, supra, that Tellez' visit was between August 20 and August 31. Mani and Campos tes- tified that Tellez' visit preceded their knowledge of union activity. The testimony of S. and J. Carrillo and Pedraza on this subject is so conflicting, and the demeanor of those witnesses so unconvincing, that the dates they gave for their alleged first conversation with Campos are given no credit. S. Carrillo placed the date of the first conversation at August 10; J. Carrillo said it was in August; Pedraza fixed the date as approximately July 19. However, Mani and Campos were equally unconvincing, since they placed the date in late or mid-September, after S. Carrillo was fired; Campos acknowledged talking with S. Carrillo be- fore the latter was discharged. Campos denied telling any employee that he would be fired because of being involved in union activity. That issue is a secondary one, since the key issue is the reason for the discharges of the four em- ployees. If they would have been discharged when they were, in any event, regardless of their union activity, the fact that Respondent knew of that activity and disap- proved of it is immaterial. In view of all the circumstances, it is apparent that Campos and Mani learned of union ac- tivity in the plant at about the time of Tellez' visit. How- ever, that fact is not controlling of any issue, since Campos acknowledged talking with S. Carrillo about the Union prior to S. Carrillo's discharge. Thus. Respondent knew of the union activity at least prior to the discharge of most of the 22 employees, including Palomares. D. Discharges as They Related to Immigration Requirements Several matters of importance are not in dispute, or are abundantly clear in the record. (a) Most of Respondent's approximately 32 production employees at times relevant herein were illegal entrants.l7 (b) Tellez, an Immigration Service official, approached Mani and advised him of a desire to go into the bakery and apprehend any illegal en- trants. (c) Soon after Tellez' visit, Respondent instituted systematic discharge of all its 22 employees who were ille- , This matter is discussed nfra (ampeos was nolt an illegal entrant gal entrants. Discharges were staggered, generally upon the basis of experience and skills, in order to keep the business in operation. (d) Tapia, an experienced leadman, was dis- charged along with the other illegal entrants. All illegal entrants were discharged by Respondent over a period of approximately I month. (e) All of Respondent's employees who were legal entrants were retained. (g) All dischargees were replaced by legal entrants. (h) The four employees involved herein were not the first to be discharged, yet their union activity had been known by Respondent since the discharges were commenced. (i) S. Carrillo testified that there was union activity throughout the plant, on both shifts, and that all employees were equally involved. There is no evidence that the four employees involved herein were leaders of the organization movement, nor is there any apparent reason for the other 18 dischargees not being included within the charges. If, as contended by General Counsel, the discharges of the employees involved herein were motivated by a desire to stamp out union activity. it seems that other would be included within the complaint. (j) Prior to Tellez' visit, Respondent had never been in- volved with immigration problems. The fact that Mani was troubled by Tellez' visit and attempted to do something about it other than to discharge all illegal entrants is shown by the record: 1. Pedraza testified that Mani spoke with all the employ- ecs "continuously" about the immigration matter, starting in August, and that Mani told Pedraza personally. approxi- mately I week before Pedraza was discharged: . . .That we were all going to be laid off because we were illegals. That the factory was reported to Immi- gration and that he was afraid that Immigration would arrive at almost any moment and would leave the fac- tory without people. And I said that he shouldn't be interested in that, because we could return or he could take us back. Pedraza stated that, after Mani talked with all the employ- ees concerning the problem, the subject was one of fre- quent conversation among the employees. Pedraza also tes- tified that Mani offered to speak with his attorney about assisting Pedraza to obtain immigration papers, provided Pedraza had the money to pay the attorney; that Pedraza said he had the money and would like the assistance; but that Pedraza thereafter made no attempt to obtain papers. 2. S. Carrillo testified that Mani talked with him on ap- proximately August 15 and stated: He said that he was going to be laying off all those that didn't have papers, and he was going to get legal people in case the Immigration were to come and take us; so that his work-his job would not become para- lyzed, but he could continue on working: but that later he would give us jobs.' 8 S. Carrillo also testified that Mani told him that he would not be fired: "that I should tell him where I was going to hide; and I told him where." S. Carrillo gave Campos his IS ('arrill, said this cnversation oinAugust I , was.S Solme flse or ix da!s" ifter he talked tith (ampos about the nion Iellez .sit us. he- Aeen August 20 and 31 This Inconsistienc. amnon other imilar inconsls- tenlcs. i resl,,' ed s lrryi 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paycheck to hold in the event Carrillo was picked up by the Immigration Service. Carrillo stated that, if he had money when he was picked up, he would be sent far away in Mexi- co, but that, if he had no money, he would be sent only to Tijuana; he intended to return to the United States if he was sent back to Mexico. 3. J. Carrillo testified that Mani told him in August that Mani's attorney could assist in obtaining an immigration permit if J. Carrillo had money to pay the attorney and wanted assistance. J. Carrillo said he had the money and would give it to Mani, but thereafter nothing further was said by Mani. 4. Lara testified that she quit her job and told Campos, "I'm not going to stay here, because I don't have any pa- pers to work." 5. Tapia testified that Mani told him that any employee who did not have a permit to work "was out," and Tapia said he wanted to continue working. Mani suggested that Tapia obtain an attorney or marry an American woman and thereafter obtain a permit. Mani and his uncle found someone for Tapia to marry and loaned him $200. They were married, but Tapia and Mani never discussed the matter thereafter. 6. Palomares testified that Mani talked with nearly all the employees on the night shift about the immigration problem and told them he would help them get working permits if he could. Mani said he would talk with his attor- ney, and the same day or the following day, Mani said his attorney would come to the plant to talk with employees about obtaining permits, which would cost $250 each: an- other fee would be necessary if permits were obtained. The attorney did not come to the plant as scheduled, and a few days later Palomares went to see Mani about the immigra- tion matter. After discussing the fact that Palomares had been in the United States 7 or 8 years, Mani called a Span- ish-speaking woman on the telephone and gave Palomares her telephone number. Palomares later called the woman on the telephone, and they arranged for her assistance in obtaining a permit for Palomares. No further action was taken. 7. Mani testified that after talking first with Tellez and thereafter with his attorney, Mani talked with all employ- ees in the bakery and explained the problem. They asked what they should do, and Mani said he would have to let them go if they did not have proper documentation. He talked with his attorney, who said he could help. Mani told the employees the results of his talk with the attorney, but the attorney called back and said he could not assist the employees. 8. Campos corroborated Mani on this point, to the ex- tent of his personal knowledge. Discussion It is quite clear from the testimony of all witnesses that Respondent was concerned about the possibility of an Im- migration Service raid on the bakery, which would have resulted in at least a temporary cessation of business, since 22 of the 32 bakery employees were illegal entrants. It is equally clear that Respondent's concern was com- municated to the employees, and that they were advised that all employees without proper documentation would be terminated. Finally, there is no indication, however, slight, that the immigration problem was related in any manner to union activity at the plant. E. The Discharges of Pedraza, S. Carrillo, and Palomares Pedraza testified that, when he was laid off, Mani told him it was because Mani "was afraid the Immigration would come to the bakery." Tapia testified that he was not told when he was laid off that there was any reason other than the immigration problem. S. Carrillo testified that he was not told why he was terminated. Palomares testified that he was told when he was laid off the reason was the immigration problem, and that he could return if he ob- tained a work permit: that he returned to the plant in No- vember and presented to Mani a letter from an attorney, 19 but Mani would not accept the letter as a work permit; that he later gave Mani a paper which he claimed was a work permit,20 but Mani said there was no work and asked him to call back in a few days. Mani testified that the three employees were laid off solely because of his fear of an Immigration Service raid, and that when the employees were terminated he did not know of any union activity at the plant. All witnesses who testified on the point agreed that, when the employees returned after layoff to pick up their checks, they were told their layoff was because of the im- migration problem. Discussion There is no indication or testimony that Mani ever dis- cussed union matters or union activity with any employee. The uncontradicted, and credited, testimony of Mani and employee witnesses shows that Mani laid off employ- ees on a staggered basis, in order to train new employees and to keep the bakery in operation. General Counsel's Exhibit 7, a copy of which Palomares said he gave to Mani in November, relates solely to Palo- ,iares' wife. General Counsel's Exhibit 8, a copy of which Palomares said he gave to Mani in November, is not a work permit; it is a notice of permission to remain in the United States until further notice, issued by the Immigra- tion Service. Mani said he had never seen General Coun- sel's Exhibit 8. This conflict need not be resolved, since the exhibit is dated November 17, more than 2 months after Palomares was terminated, and there is no allegation of refusal to rehire. The document is of no weight so far as motive is concerned, since Mani's credited testimony shows that the production crew was fully manned by No- vember 17. There is no reasonable question but that Pedraza, S. Car- rillo, and Palomares were laid off, along with 18 other em- ployees, because they were illegal entrants and Mani feared a raid by the Immigration Service. General Counsel argues that at least part of the reason ',(;.(. xh T (.( :xh 8 INTERNATIONAL BAKING COMPANY 237 for the terminations was the union activity of the three employees here involved, but that argument misses the point. The only question is whether or not the employees would have been terminated in any event, regardless of their union activity. It is apparent that they would have been. Mani discharged all employees who did not have proper documentation. It is unreasonable and unrealistic to argue that Mani should have retained these three em- ployees and fire all the others only because he knew of union activity on the part of the three. This is particularly so in view of the fact, confirmed by Ochoa, that 10 employ- ees signed union authorization cards, and in view of the testimony of S. Carrillo that nearly all employees in the plant were equally supportive of the Union; no other em- ployees are even alleged to have been fired because of their union activity. The question posed by this case was answered when it was presented in Norge Division, Borg-Warner Corpora- tion,2' in the following language: Were the employees terminated because they engaged in concerted activity? Or were they terminated for some other and legitimate reason that would have im- pelled the Respondent to take such action even inde- pendently of their concerted activity? In adopting the reasoning of Norge Division, the Board stated in Erie Strayer. 22 We have long held that even where an employer may want to rid himself of an employee whose union activ- ities have made him persona non grata, "if the employ- ee himself obliges his employer by providing a valid independent reason for discharge-i.e., by engaging in conduct for which he would have been discharged anyway-his discharge cannot properly be labeled a pretext and ruled unlawful." See P. G. Berland Paint City, Inc., at next to last paragraph of the text. See also McDonnell Douglas Corporation, 189 NLRB 87, 91 (1971), in which Member Jenkins participated. The General Counsel relies upon testimony relative to Campos to support the allegation of illegal discharges. J. Carrillo testified: Q. (By Mr. Martinez) How were you told you would no longer be working? A. Jose Campos told me that Daniel was saying, "He doesn't need you right now, because he has lots of people." (sic) That when he would need me, he would call. Q. When who would need you? A. When Daniel would need me, he would call me again. Q. Was anything else said at that time? A. Then I said, "Why?" And he said, "It's caused by the fact that you signed the card." 1 5 Nl RB 1087, 1089 (1965) 2 Erie Strayer Cmpamn. 213 NL.RB 344. 346 at fn. 9 11974). See al., 1 Restaurant, Incorporated 223 NL.RB 725 19761: Kari Filrlrm r . In 223 NLRB 211 (1976): On glia and (rvainm ( ontrutriltll ( . 222 N I RB 579 1976). And then there wasn't any more, because I went home. J. Carrillo further testified that he later went with S. Carril- lo and Pedraza to pick up his final paycheck and talked with Mani while Simon Mani and Khashou were present. J. Carrillo said "at that time we asked Daniel why he had fired us. And he said that we knew why." S. Carrillo was examined at length. but did not corroborate J. Carrillo on this point. Pedraza testified that Mani said "he was firing us and that we knew why: that we shouldn't play stupid." However, Pedraza placed the conversation at a different time, prior to the employees' returning to get their pay- checks, and he said Jose Orteaga also was present. S. Car- rillo did not mention Orteaga. As in the matter of Respon- dent's knowledge of union activity, discussed supra, the testimony of the witnesses substantially varies. Based upon that variance and upon observation of the witnesses, the recitations in this instance are given no credence. In any event, the alleged statement is ambiguous and could refer either to union activity or to the immigration problem as cause for discharge. As discussed supra, Campos interrogated employees about their union activity, probably in late August, in vio- lation of Section 8(a)( I ) of the Act. The General Counsel alleged that Campos also threatened to fire employees be- cause of their union activity. and that allegation is found proved, infra. However, neither that sort of threat nor any other 8(a)(1) statement is alleged or shown, so far as Mani is concerned. Even though Campos made the threats at- tributed to him, that does not alter the conclusion com- pelled by the facts, i.e., that Mani terminated the three employees solely because of his fear of the Immigration Service and the fact that most of his production employees were illegal entrants. Mani's actions were not in violation of the Act. The General Counsel argues in his brief 23 that Mani testified that he fired the employees because "his concern was that the employees would go to work for his competi- tors and Respondent would have been out of business." That is not what Mani testified: he said an Immigration Service raid would put him out of business because he would have no employees to make bread, and his restau- rant customers would go to his competitors. F. The Discharge of J. Carrillo Respondent contends that J. Carrillo was discharged solely because of his poor work attendance record, unrelat- ed to union activities. Respondent's Exhibit 3 is J. Carrillo's timecard for the week ending September 3, showing work on 2 days, for 27- 1/2 hours: Exhibit 4 shows work for the week ending Sep- tember 10 of only I day, Monday. Mani testified that he asked J. Carrillo. when the latter came to pick up his check on Friday, September 10. why he did not come to work during the days he was absent the preceding 2 weeks, and S. Carrillo did not reply. Mani said he than stated, "Okay. Thank you very much. I don't need you. ' 1' I I 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. Carrillo testified that he was fired by Campos during the last days of August allegedly because he was not need- ed, but when J. Carrillo asked why he was not needed, Campos replied "Ilt's caused by the fact that you signed the card." J. Carrillo stated that, when he returned to the plant with S. Carrillo and Pedraza to pick up his check, he was told by Mani that he knew why he was fired, as discussed supra. Campos testified that J. Carrillo was fired "even before immigration was problem." Discussion The fact that J. Carrillo was absent from work 7 out of 10 working days immediately prior to his discharge is shown by his timecards. J. Carrillo did not deny his absences, nor did he deny Mani's testimony that no reason was given for the absenc- es. J. Carrillo did not testify on rebuttal. There is nothing in the record to show that J. Carrillo called in to report his intention to remain away from work. In view of the foregoing, it is quite clear that Respondent had ample cause to fire J. Carrillo. The fact that no prior warning was given is of no weight, since (a) there is no statutory requirement that warnings be given; 24 (b) Mani credibly testified that Respondent has no disciplinary warning system; (c) this is not a case involving one or two occasions of absence; J. Carrillo was not at work on 3 days of one week, and 4 days of the following week. Mani had good cause to believe J. Carrillo no longer was interested in his job, particularly in view of his failure to explain why he was absent. The only two questions are the conflict in testimony be- tween Mani and J. Carrillo as to who did the firing, and J. Carrillo's testimony concerning Campos' alleged statement at the time J. Carrillo was fired. So far as the conflict in testimony is concerned, Mani is credited. So far as Campos' alleged statements are con- cerned, they are given no credence, since it is clear that Campos did not do the firing. If Campos had made such a remark, there would have been no necessity for the em- ployees to ask, when they picked up their checks, why they were fired-they already would have known that, since all the employees had signed cards. This allegation of the complaint is not supported by the record .2 F. Alleged 8(a)(1) Violalions Paragraph 10 of the complaint alleges that, in or about August, Campos interrogated employees, offered employ- ees economic benefits in order to induce employees to in- form on their fellow workers, threatened employees with discharge, and created the impression of surveillance of union activities. 1. Campos' 8(a)( ) interrogation is found supra. Alper.s' Jobbing (rn pamn. In(. 231 NL.RB 449 (1977) 2 41p.rs' Jobhing ( ompan. upra. Itcrstoics h ngine'rtl,. a ),t". , IA JT . Inc. 230 NI.RB 1 (1977): Prolrcr Ris iSill. I. 222 N RBH 875 (1976). 2. Although the various versions of Campos' conversa- tion with employees described supra create some difficulty, a single thread runs through them: Campos wanted to know what the union activity was about, and he questioned employees to find out. The employees who testified gener- ally were not convincing, as previously noted, but in view of the circumstances surrounding Campos' acknowledged interrogation, their testimony that Campos threatened them with discharge; attempted to get them to inform on fellow workers by promising not to discharge them if they were informers; and created the impression that their union activities were being watched, is credited. 3. Lara was a convincing witness, and her testimony that Campos interrogated her about union activities is credited. The above 8(a)(1) allegations are supported by the rec- ord. IV 1H tL FFE( r OF 1ltl UNFAIR l.ABOR PRACTICES PON (OMMIRC t The activities of Respondent set forth in section IV, above, occurring in connection with the operations of Re- spondent as described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(l) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. It is recommended that all allegations of the complaint not found proved be dismissed in their entirety. Upon the basis of the foregoing findings of fact and upon the entire record, I hereby make the following: CONI SIONS OF LAW 1. International Baking Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Bakers Union, Local 37, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)( 1) of the Act by in- terrogating its employees. offering its employees economic and other benefits in order to induce the employees to in- form on their fellow workers concerning union activity, threatening employees with discharge in order to discour- age their union activity, and creating the impression that it was engaging in surveillance of their union activity. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: INTERNATIONAL. BAKING COMPANY 239 ORDER - T'he Respondent. International Baking Company. Inc.. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Bakers Union. Local 37. or in an' other labor organization, by interrogating its employees concerning their union activities, offering its employees economic and other benefits in order to induce the employees to inform on their fellow workers concern- ing union activity, threatening employees with discharge in order to discourage their union activity, and creating the impression that it is engaging in surveillance of their union activity. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to self-organization, to form. join, or assist labor or- : In the ecen n excepilr , aire filed as pro.slde h 5 ct 102 4 iof lhc Rules and Reguldtion, of the %,iion., I iabohr Rela.ions B.oard. the [Ldrtiri,. contluMiln,, and rrmnmrllded Order herein hall. ias prmided in Sec 102 48 i the Rules and Regiulatlrn,, he adopted h Ihe Boa.rd anId hnmlc Its findings. conclusimns. anrd Order. and all ohbjeciton hereto h.ali he deemed Asaiked for ll purp.se ganizations, including the above-named organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action, which I find will effectuate the policies of the Act. (a) Post at its Vernon, California. operation copies of the attached notice marked "Appendix.' 27 Copies of the notice on forms provided by the Regional Director for Re- gion 21, after being duly signed b5 an authorized represen- tative of Respondent. shall be posted by Respondent im- mediatel? upon receipt thereof, and be maintained for 60 consecutive days thereafter. in conspicuous places. includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21. in writ- ing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. I l the ic l htll thi ()rder it cnfoiced h; .i udLicnit of .i t lted Stilcs (iiourt f \ppeal, tilhe orl, in the ntice reading "Posted h (O)der oi tlC Nlllritl I lhabor Rclllll, Bo.rd" hall read '"TPo ted l'urualllt to .1 JiLditLlt ol et tnced stlate, ( ourl of \ppe iai nfrctlng , OrdeTr f thi ~ll1 [.hor Relatltns Biard" Copy with citationCopy as parenthetical citation